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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICKEY JASON SPLAIN, )
) Court of Appeals No. A-6017
Appellant, ) Trial Court No. 4FA-S94-3646CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1484 - October 4, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Niesje J. Steinkruger,
Judge.
Appearances: Frederic E. Brown, Fairbanks, for
Appellant. Bill D. Murphree, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Mickey Jason Splain was driving while intoxicated and
collided with another car, causing serious physical injuries to its
two occupants, as well as substantial -- though less serious --
injuries to himself and his own passenger. As a result of the
incident, Splain was charged with two counts of first-degree assault
in violation of AS 11.41.200(a)(1) (recklessly causing serious
physical injury to another person by means of a dangerous
instrument), one count of third-degree assault in violation of
former AS 11.41.220(a)(2) (recklessly causing physical injury to
another person by means of a dangerous instrument), and one count
of driving while intoxicated (DWI) in violation of AS 28.35.030(a).
Pursuant to a plea bargain, Splain eventually pled no
contest to the third-degree assault charge and to two reduced
charges of second-degree assault in violation of AS 11.41.210(a)(2)
(recklessly causing serious physical injury to another person). In
return, the state dismissed the first-degree assault and DWI
charges.
Second-degree assault is a class B felony, punishable by
a maximum term of ten years' imprisonment and by presumptive terms
of four and six years for second and subsequent felony offenders.
AS 11.41.210(b); AS 12.55.125(d). Third-degree assault is a class
C felony, punishable by a maximum of five years' imprisonment and
by presumptive terms of two and three years for second and
subsequent felony offenders. AS 11.41.220(d); AS 12.55.125(e).
Splain had no prior criminal convictions and was not subject to
presumptive sentencing.
Superior Court Judge Niesje J. Steinkruger sentenced
Splain to consecutive terms of four years with one year suspended
and one year with six months suspended for the second-degree
assaults and to a concurrent term of one year with nine months
suspended for the third-degree assault; Splain's composite term is
thus five years with one and one-half years suspended. Splain
appeals, contending that the sentence is excessive. We affirm.
Splain first contends that the total length of his
composite sentence -- five years -- is less favorable than the four-
year presumptive term for a first felony offender convicted of a
class B felony. Splain argues that, for this reason, the composite
sentence violates Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981) (holding that a first offender should normally receive a
sentence more favorable than the presumptive term for a second
felony offender).
For purposes of applying the rule of Austin, however, we
look primarily to the unsuspended portion of a sentence. Tazruk v.
State, 655 P.2d 788, 789 (Alaska App. 1982). Here, Splain received
a total of three years and six months of unsuspended incarceration,
six months less than the four-year presumptive term for a second
class B felon. When realistically viewed, Splain's total term of
five years with one and one-half years suspended is decidedly more
favorable than a presumptive four-year term of unsuspended
incarceration. The composite term does not violate Austin. (EN1)
In any event, the Austin rule applies to sentences imposed
for individual offenses. Each of Splain's individual sentences is
plainly more favorable than the corresponding second-offense
presumptive term. Splain's composite term is properly subject, not
to the Austin rule, but to the rule announced in Farmer v. State,
746 P.2d 1300, 1301 (Alaska App. 1987): "When an offender is
convicted of multiple crimes, the presumptive term for the most
serious crime [is] a benchmark that is not to be exceeded without
good reason."
In electing to impose consecutive terms totaling five
years with one and one-half years suspended, Judge Steinkruger
expressly found "that some consecutive time is appropriate in this
case because of the seriousness of the offense, harm to three
people, to reflect society's interest in the number of victims, and
[to make it clear] that you don't get any two-for-one or three-for-
one results in sentencing when [multiple] people are injured[.]"
This finding comports with the requirement of Farmer.
Splain also contends that Judge Steinkruger's sentencing
decision may have been unduly influenced by the unusually eloquent
and emotional statements submitted to the sentencing court by and
in support of Splainžs victims. Our review of the entire sentencing
record, however, discloses no suggestion of undue influence.
The composite sentence Judge Steinkruger imposed is
squarely within the benchmark range for a typical first offender
convicted of a typical to moderately aggravated class B felony. See
State v. Jackson, 776 P.2d 320, 326 (Alaska App. 1989). In imposing
sentence, Judge Steinkruger found that, despite his excellent
background and undeniably favorable prospects for rehabilitation,
Splain was a typical first offender. This determination was not
clearly erroneous. See Bossie v. State, 835 P.2d 1257, 1259-60
(Alaska App. 1992). Judge Steinkruger also concluded that Splain's
conduct constituted a moderately aggravated first-offense class B
felony. Again, this determination was not clearly erroneous. See
Benboe v. State, 698 P.2d 1230, 1232 (Alaska App. 1985).
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not clearly
mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Accordingly, we AFFIRM.
ENDNOTES:
1. Splain's reliance on Lewis v. State, 845 P.2d 447 (Alaska App.
1993), is mistaken. In Lewis we considered a first-offense class
C felony in which a sentence of five years with three years
suspended had been imposed. We concluded that the two-year
unsuspended portion of the sentence was equivalent to, not more
favorable than, the two-year second-offense presumptive term for a
class C felony; accordingly, we found that the unsuspended portion
of the sentence in itself marginally violated the Austin rule. We
then went on to observe that the total term, which included an
additional three years of suspended incarceration, was unquestion-
ably more severe than the second-offense presumptive term and thus
amounted to a substantial Austin violation. Nothing in Lewis
suggests that a sentence such as Splain's -- whose unsuspended term
falls significantly below the presumptive term for a second
offender and whose total term exceeds the presumptive term only
when suspended time is considered -- would constitute an Austin
violation.
